Decision Date: 10/19/95 Archive Date: 01/17/96
DOCKET NO. 92-55 762 ) DATE
)
)
On appeal from the decision of the
Department of Veterans Affairs Regional Office in New
Orleans, Louisiana
THE ISSUE
Whether the appellant's claim of entitlement to service
connection for an acquired psychiatric disorder is well-
grounded.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Brian J. Milmoe, Counsel
INTRODUCTION
The appellant served on active duty for training from March
1981 to August 1981, with there being a period of active duty
for training in June 1984 and various periods of inactive
duty training between January 1985 and March 1986.
By a decision, dated in May 1993, the Board of Veterans'
Appeals (BVA or the Board) denied entitlement of the
appellant to service connection for back and psychiatric
disorders, specifically finding that the appellant's claim of
entitlement to service connection for a psychiatric disorder
was not well-grounded under 38 U.S.C.A. § 5107(a) (West
1991). The appellant thereafter appealed the BVA's denial of
his claim of entitlement to service connection for a
psychiatric disorder to the United States Court of Veterans
Appeals (hereinafter, the Court). In a memorandum decision
entered in December 1994, the Court held that the BVA had
failed to provide any support for the medical conclusion that
the appellant's psychiatric disorder was not the result of an
injury sustained during inactive duty training. As such, the
Court vacated that portion of the May 1993 decision of BVA
denying the claim for service connection for a psychiatric
disorder and remanded the matter to BVA for supplementation
of the record with evidence as to the etiology of
schizophrenia and evidence on whether schizophrenia was an
injury within the meaning of 38 U.S.C.A. § 101(24) (West
1991). [citation redacted].
The BVA's denial in May 1993 of the appellant's claim
of entitlement to service connection for a back disorder
remains in full force and effect.
After developing additional evidence in this case, BVA, in
accordance with Thurber v. Brown, 5 Vet.App. 119 (1993),
informed the appellant’s representative in an August 1995
letter of the additional evidence developed and the BVA’s
intention to rely on such evidence, and provided an
opportunity for a response. The veteran has elected not to
respond; the representative responded in September 1995.
CONTENTIONS OF APPELLANT ON APPEAL
It is contended by the appellant, in substance, that a
chronic acquired psychiatric disorder had its onset during a
period of inactive duty training occurring in October 1985.
Although the reasons for his reported nervous breakdown in
October 1985 were not previously set forth, the appellant
argued before the Court that, beginning in the Summer of
1985, he had been sent to Panama where he was singled out and
subjected to abuse by his sergeant. In the appellant's
opinion, such abuse caused or aggravated his psychiatric
disorder to the point that it became debilitating. The
appellant reports that he was actively psychotic in October
1985 and that he required hospital management of his
pertinent symptoms. Continued treatment of his schizophrenia
occurred in subsequent years through the present time.
DECISION OF THE BOARD
BVA, in accordance with the provisions of 38 U.S.C.A. § 7104
(West 1991), has reviewed and considered all of the evidence
and material of record in the appellant's claims file. Based
on its review of the relevant evidence in this matter, and
for the following reasons and bases, it is the decision of
BVA that the appellant's claim of entitlement to service
connection for an acquired psychiatric disorder is not well-
grounded.
FINDING OF FACT
The claim for service connection for an acquired psychiatric
disorder is not supported by cognizable evidence showing that
the claim is plausible or capable of substantiation.
CONCLUSION OF LAW
The claim for service connection for an acquired psychiatric
disorder is not well-grounded. 38 U.S.C.A. § 5107(a) (West
1991).
REASONS AND BASES FOR FINDING AND CONCLUSION
The threshold question to be answered in this case is whether
the appellant has presented evidence of a well-grounded
claim; that is, one which is plausible and meritorious on its
own or capable of substantiation. If he has not, his appeal
must fail. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski,
1 Vet.App. 78 (1990). BVA finds that the appellant's claim
of entitlement to service connection for an acquired
psychiatric disorder is not well-grounded, and there is no
further duty to assist him in the development of his claim.
Factual Background
The appellant, who is not service-connected for any
disability, is without active duty service. As noted by the
Court in its memorandum decision of December 1994, he did
serve on active duty for training in the Army National Guard
from March 1981 to August 1981 and during June 1984, with
inactive duty training occurring at various times between
January 1985 and March 1986. Records relating to the periods
of active duty for training are not obtainable. Also
determined by the Court were the following: (1) That, prior
to October 20, 1985, the appellant's service medical records
were negative for any psychiatric problems, and (2) that, on
October 20, 1985, while serving a period of inactive duty
training with the National Guard, he was observed to be
acting very bizarre, for which he was taken into protective
custody by police authorities and later hospitalized for more
intensive
psychiatric care. Following some improvement, the appellant
was discharged from Central Louisiana State Hospital in
November 1985 with a diagnosis of a schizophreniform
disorder.
The record also reflects that, following the appellant's
discharge from hospital care in early November 1985, he was
seen for evaluation and treatment at a non-VA facility. At
that time, the appellant communicated that he had been
feeling depressed and worried since being out of work for the
previous two months, and that he had had problems with a co-
worker who had "talked crazy" to him during the time frame
5-6 months prior thereto. Also there was noted to have been
a history of prior alcohol and drug abuse. Because of
increasing nervousness, as well as delusional activity and
increasing violent and assaultive behavior toward others, the
appellant was again hospitalized for psychiatric reasons
during the period from November 1985 to January 1986. During
the course of such hospitalization, the appellant's wife
reported that the appellant had been having some type of
mental problems since the age of 16 years. The diagnosis was
of a schizophreniform disorder. Further outpatient
psychiatric care was received at a non-VA facility during the
years following. VA psychiatric examination in October 1990
was productive of history and findings culminating in a
diagnosis of a schizophrenic reaction by history, presently
in remission with treatment.
Analysis
For a disability resulting from personal injury suffered or
disease contracted in the line of duty, or for aggravation of
a pre-existing injury suffered or disease contracted in line
of duty, in the active military, naval or air service, during
other than a period of war, the United States will pay to any
veteran thus disabled and who was discharged or released
under conditions other than dishonorable from the period of
service in which such injury or disease was incurred, or pre-
existing injury or disease was aggravated, compensation as
provided in this subchapter, but no compensation shall be
paid of the disability as the result of the veteran's own
willful
misconduct or abuse of alcohol or drugs. 38 U.S.C.A. § 1131
(West 1991). The phrase "in the active military, naval, or
air service" is further defined by 38 U.S.C.A. § 101(24)
(West 1991):
The term "active military, naval, or air
service" includes active duty, any period
of active duty for training during which
the individual concerned was disabled or
died from a disease or injury incurred or
aggravated in line of duty, and any
period of inactive duty training during
which the individual concerned was
disabled or died from an injury incurred
or aggravated in line of duty.
The implementing regulation maintains the same distinction
between disease and injury for purposes of determining active
service. 38 C.F.R. § 3.6(a), (d) (1994). Accordingly, the
cited legal authority permits service connection for persons
on inactive duty training only for injuries, not diseases,
incurred or aggravated in line of duty. Brooks v. Brown,
5 Vet.App. 484 (1993). Also, an examination of the
legislative history of § 101(24) by the Court has not
indicated that such provision should be otherwise construed.
Id. at 485. Also, it is not shown that the appellant's
service may be deemed to be active service under 38 U.S.C.A.
§ 106 (West 1991). As such, the appellant in this case must
demonstrate that the schizophreniform disorder shown to be
present on October 20, 1985, during a period of inactive duty
training, is an injury within the meaning of the statute.
The VA's General Counsel in a precedent opinion in which it
was determined that a myocardial infarction sustained by an
individual serving on inactive duty training was not an
injury under 38 U.S.C.A. § 101(24), offered definitions of
the terms, injury and disease. VAOPGCPREC 86-90 (O.G.C.
Prec. 86-90). Therein, injury was defined as harm resulting
from some type of external trauma, and disease was
defined as harm resulting from some type of internal
infection or degenerative process. Precedent opinions of the
VA's General Counsel are binding on BVA. 38 U.S.C.A.
§ 7104(c) (West 1991); 38 C.F.R. § 19.5 (1994).
The term, schizophreniform, is defined as resembling
schizophrenia. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1177
(26th ed. 1981). Schizophrenia is defined as any of a group
of severe emotional disorders, usually of psychotic
proportions, characterized by misinterpretation and retreat
from reality, delusions, hallucinations, ambivalence,
inappropriate affect, and withdrawn, bizarre or regressive
behavior. Id.
Although there is no definite agreement concerning the
fundamental causes of schizophrenia, the theories of etiology
can be divided into those concerned with organic factors and
those concerned with psychosocial factors. S. Glasner, P.
Solomon, HANDBOOK OF PSYCHIATRY 171 (P. Solomon et al. eds., 3rd
ed. 1974). The possible organic or biological causes include
genetic predisposition, in addition to biochemical,
endocrine, toxic, and neurologic factors. The possible
psychosocial causes include intrapsychic conflict, defects in
the mother-infant relationship, pathologic communication
(breakdown in the individual's ability to discriminate
properly in logical thinking when exposed consistently over a
long period of time to "double-bind" situations in which one
is confronted with two contradictory messages), and
pathologic family interactions. Id. at 171-77. See also, M.
T. Eaton, Jr., M.D., M. H. Peterson, M.D., & J. A. Davis,
M.D., PSYCHIATRY, MEDICAL OUTLINE SERIES 226-32 (4th ed. 1981).
There is no indication in the record, nor is it so contended,
that the schizophrenic disorder experienced by the appellant
on October 20, 1985, and thereafter, was the result of
physical trauma to the head or elsewhere. Similarly, it is
not shown or alleged that the schizophreniform or
schizophrenic disorder was in any way drug-induced. The
appellant has argued to the Court that, beginning in the
Summer of 1985, he was sent to Panama, where he was singled
out and subjected to abuse
from his sergeant. The record in no way substantiates or
supports that version of events; specifically, there is no
mention whatsoever of any inservice abuse by a superior
anywhere in the record. It is noted that, in November 1985,
the appellant reported to a mental health professional that
the precipitating factor for his "nervous breakdown" in
October 1985 was his two-month period of unemployment and he
also mentioned that he had experienced problems with a co-
worker who "talked crazy" to him 5 to 6 months prior to that.
However, by the appellant’s own statement, it transpired in
connection with civilian employment and not inactive duty
training. As well, the medical treatises cited above do not
support the notion that the schizophreniform or schizophrenic
disorder in this case was caused by the co-worker who "talked
crazy" to the appellant six months prior to the psychotic
break occurring in mid-October 1985. Even if the claimed
incident were service-related and verified, such event does
not appear to fall within the cited etiologic factors
associated with the onset of schizophrenia.
To be well-grounded, a claim must be supported by evidence,
not just allegations. Tirpak v. Derwinski, 2 Vet.App. 609
(1992). In this instance, the appellant is not alleging, nor
it is shown, that an acquired psychiatric disorder was
incurred during active duty for training. As well, no
competent evidence is offered to show that an injury was
sustained by the appellant during inactive duty training in
October 1985, from which an acquired psychiatric disorder
resulted. In the absence of competent and evidence thereof,
the appellant's claim is held to be not well-grounded and it
therefore must be dismissed. 38 U.S.C.A. § 5107(a).
BVA recognizes that the appellant's claim has been disposed
of in a matter different from that utilized by regional
office. BVA therefore considered whether the claimant has
been given adequate notice to respond, and if not, whether he
has been prejudiced thereby. Bernard v. Brown, 4 Vet.App.
384 (1993). In light of the implausibility of the
appellant's claim and his failure to meet his initial burden
in the adjudication process, BVA concludes that he has not
been prejudiced by the
decision to dismiss his claim. Hence, BVA is not denying
entitlement to service connection for an acquired psychiatric
disorder; BVA is merely stating that the appellant has failed
to meet his initial burden of presenting a plausible claim.
As such, this decision finding that the appellant's claim is
not well-grounded will not stand as a bar to any further
attempts to reopen on his part.
ORDER
The claim of entitlement to service connection for an
acquired psychiatric disorder is dismissed.
ALBERT D. TUTERA
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on appeal
is appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the agency
of original jurisdiction on or after November 18, 1988.
Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402
(1988). The date which appears on the face of this decision
constitutes the date of mailing and the copy of this decision
which you have received is your notice of the action taken on
your appeal by the Board of Veterans' Appeals.
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